Opinion
C077583
04-24-2017
THE PEOPLE, Plaintiff and Respondent, v. DONTAE LARAIL MCFADDEN, Defendant and Appellant.
NOT TO BE PUBLISHED CS.A. A.fornia Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 13F04902)
Defendant Dontae Larail McFadden, together with Davonte Marlin Stinson, surprised S.A. as he sat in his parked car, robbed him at gun point of his wallet, phone and keys, and then forced him into the trunk of his car. They used S.A.'s keys a short time later to enter his nearby apartment where his fiancé, Ashley L., was home with their two young children. After robbing Ashley at gun point, they fled. They were apprehended a few months later.
Following a joint jury trial, defendant was convicted of kidnapping S.A. for the purpose of robbery (Pen. Code, § 209, subd. (b)(1), count 1; unless otherwise set forth, statutory section references that follow are to the Penal Code), two counts of robbery, one each for S.A. and Ashley (§ 211, counts 2 & 4), and three counts of a being a felon in possession of a firearm (§ 29800, subd. (a)(1), counts 3, 5 & 6). The jury also found true allegations that defendant personally used a firearm while robbing and kidnapping S.A. (§ 12022.53, subd. (b)), and that he was vicariously armed with a firearm during the robbery of Ashley (§ 12022, subd. (a)(1)).
Defendant was sentenced to an indeterminate term of seven-years-to-life on the kidnapping for the purpose of robbery offense in count 1 consecutive to a determinate term of 18 years, four months on the remaining charges, which was calculated as follows: a principal upper term of six years for the robbery of Ashley plus one year for the attached gun enhancement, 10 years for the firearm enhancement attached to the kidnapping charge in count 1, and one-third the middle term of eight months each for the count 5 and count 6 felon in possession of a firearm convictions. The court stayed, pursuant to section 654, a five-year sentence on the count 2 robbery of S.A. plus 10-years for the personal use of a firearm enhancement on that charge, and a three-year sentence on the count 3 felon in possession charge.
Defendant appeals contending: (1) the trial court erred in denying his motion to sever the count 6 felon in possession charge from the remainder of the charges; (2) he received ineffective assistance of counsel when his attorney failed to object or request a limiting instruction concerning testimony that defendant sold Stinson cough syrup with codeine; (3) the trial was fundamentally unfair because the court erroneously admitted evidence that the victims moved from their apartment following the robberies due to safety concerns; (4) insufficient evidence supports his kidnapping for the purpose of robbery conviction; (5) the court erred in instructing the jury with a modified version of CALCRIM No. 1203, the standard jury instruction for kidnapping for robbery; and (6) his life sentence for the kidnapping for robbery offense constitutes cruel and unusual punishment. Finding no merit in defendant's contentions, we affirm the judgment.
Stinson's convictions are not at issue in this appeal.
FACTS AND PROCEEDINGS
The May 2013 Robberies
In May 2013, S.A. lived with Ashley and their two children at the Aspen Park Apartments in south Sacramento. On the afternoon of May 13, S.A. left Ashley and the children at their apartment while he went to run some errands.
Following his errands, S.A. drove to the South Park Apartments, located minutes from his own apartment complex, to see if a friend wanted to play basketball. He parked his car in the back parking lot and was about to call his friend when a slender, light-skinned Black man surprised him at his driver's side window, which was rolled down. The man, later identified by S.A. as Stinson, said, "What's up, what's up, Bro, you know what time it is?"
While S.A. was looking at Stinson, a larger, Black man with a darker complexion, later identified by S.A. as defendant, opened the front passenger side door and crawled into the car. Defendant pointed a gun at S.A.'s head and told him not to move or he would shoot him. Defendant and Stinson ordered S.A. to pull down his pants so they could pat him down, and one of them removed S.A.'s wallet from his pants pocket. S.A.'s wallet contained, among other things, a medical card that listed his address at the Aspen Park Apartments. Defendant grabbed S.A.'s phone and the keys from the ignition. S.A.'s apartment key was on the key chain.
They then ordered S.A. out of the car and forced him at gun point to the back of the car. S.A. estimated the distance to be about six to eight feet. Stinson pushed a button inside the car to pop open the trunk. While defendant pointed the gun at him, the men forced S.A. into the trunk, slamming the hood shut. S.A. was scared, and begged the men not to put him in the trunk. He believed he would never see his family again.
From inside the closed trunk, S.A. could hear defendant and Stinson rummaging through his car. After several minutes S.A. did not hear any further noises, so he used an emergency release lever inside the trunk to open it. When he got out of the trunk, he saw two men standing nearby; one of the men let S.A. use his phone to call the police. A recording of S.A.'s 911 call was played for the jury.
The man who let S.A. use his phone had seen a large Black man with darker skin and a smaller Black man with lighter skin walking away from a car that matched the description of S.A.'s vehicle. They headed towards the exit of the apartment complex and got into a car and drove away.
While S.A. was being robbed and locked in the trunk of his car, Ashley was at home alone with her two children. After hearing a knock at the front door, she opened it to find a slender Black man she did not recognize standing there. At trial she identified the man as Stinson. Stinson asked if S.A. was home. She told him no, and tried to shut the door. A second, larger Black man who Ashley had not originally seen when she opened the door stepped around the corner and stuck his foot out to stop her from closing the door. After she said, "excuse me," the man withdrew his foot and she was able to shut and lock the door. At trial she identified defendant as the larger man who tried to prevent her from shutting the door.
Scared, she retrieved a gun she owned, which was near the front door. She then heard the sound of S.A.'s keys in the door. The two men used the keys to open the door and force their way inside; defendant wrestled the gun from Ashley's hands and put the gun in his pocket. Stinson grabbed her from behind and pointed a gun at her temple while she was holding her infant daughter. He demanded to know where their other guns were located. Although at first she told him they did not own any more guns, she eventually led them to a closet in the bedroom where S.A. kept a shotgun. After defendant took the shotgun, he demanded money. Ashley emptied her purse, which contained only a few dollars, but she was unsure if the men took anything from her purse. Stinson then demanded her phone so she could not call the police and then ran out of the apartment leaving S.A.'s keys behind.
Once the men left, Ashley yelled for help from her neighbors. A few neighbors called the police, and Ashley was able to report the robbery. A recording of her 911 call was played for the jury. She later told the responding officer that defendant had "twisties" in his hair and had a small beard on his chin.
Meanwhile, Officer Farahmand went to the South Park Apartments to interview S.A. about being robbed. S.A. described the suspects as a taller, heavier Black man wearing a white t-shirt and a shorter, more slender Black man with lighter skin wearing a white tank top and blue jeans. He described the gun as black with a little silver on the top.
While interviewing S.A., a dispatch report came through the officer's radio that an armed robbery had occurred at S.A.'s apartment address. After taking S.A. to a field show-up with a person of interest whom S.A. said was not either of the men who robbed him, Officer Farahmand drove S.A. over to his apartment to check on his family, leaving another officer to watch S.A.'s car.
Police were able to remove several latent prints from the exterior trunk of S.A.'s car. One of the fingerprints matched defendant, and a palm print was identified as Stinson's. No latent fingerprints were recovered from the apartment.
A few months after the incident, S.A. was shown six-pack photographic lineups containing pictures of defendant and Stinson. After viewing the lineups, S.A. identified defendant as the man who held the gun to his head during the robbery and Stinson as the man who first approached him on his driver's side door. Ashley was also shown six-pack photographic lineups containing defendant and Stinson. She was unable to pick out defendant's photograph from the lineup, and thought Stinson could have been either of two photographs (one of which was his), but she was not certain. At a live line-up, Ashley identified defendant based on his voice and shape of his head. Although not completely sure, she also picked Stinson out of the live line-up.
The August 2013 Incident
In August 2013, defendant was taken into custody following a vehicle stop. He told officers he had been staying with his grandmother. A search of his grandmother's apartment revealed defendant's backpack, which contained a loaded .9 millimeter handgun and some papers with his name on them.
Trial Proceedings
An August 2014 second amended information charged defendant with kidnapping S.A. for the purpose of robbery (§ 209, subd. (b)(1), count 1) while personally using a firearm (§ 12022.53, subd. (b)), second degree robbery of S.A. (§ 211, count 2) with an attached personal use of a firearm enhancement (§ 12022.53, subd. (b)), first degree robbery of Ashley (§ 211, count 4) while a principal was armed with a firearm (§ 12022, subd. (a)(1)), and three counts of being a convicted felon in possession of a firearm (§ 29800, subd. (a)(1), counts 3, 5 & 6), one each for the May 2013 robberies and one for the August 2013 backpack incident. Defendant pleaded not guilty to all charges and denied all allegations.
Prior to trial, defendant moved to sever the convicted felon in possession charge alleged in count 6 from the remainder of the charges. The court denied the motion, finding that the gun found in defendant's backpack in August 2013 appeared to match defendant's description of the gun used in the May 2013 robbery and thus would be relevant for the jury's determination of whether the same gun was used in each offense. The court also found a lack of prejudice in trying the counts together because the count 6 felon in possession charge was not inflammatory, was the same as two other counts already alleged in the information, and the matter was not a death penalty case.
During trial, S.A. and Ashley testified to the events described above. Both said they did not know either defendant or Stinson, and both positively identified defendant and Stinson at trial. S.A. also testified that defendant had worn "twisties" in his hair when defendant robbed him, and that Stinson had some type of tattoo on his face, although he did not remember any other tattoos.
S.A. again described the gun used to rob him as black with a little silver on top, but when shown the gun recovered from defendant's backpack in August 2013, S.A. said it was not the same gun. Ashley was unable to describe the gun held to her head beyond stating it was a handgun.
Defendant did not testify in his own defense, but he did call his cousin as a witness. She testified defendant walked with a slight limp from a gunshot wound he sustained several years earlier, that she had never seen him run, and that he had always had short hair that was not long enough to wear in "twisties." Although she told an investigator that defendant never had facial hair, when shown multiple pictures of defendant she conceded he had facial hair in the pictures.
Stinson's wife's grandmother testified on his behalf. According to her, Stinson had been shot in April 2013, and, as a result, he could not lift things, walk normally, or run.
Stinson testified on his own behalf. He denied having robbed either S.A. or Ashley. He explained that he initially met defendant in jail. He later ran into defendant at a store, and defendant told him that he had "syrup on-line," meaning that defendant had cough syrup with codeine for sale. After being shot, Stinson purchased some cough syrup from defendant to help him sleep. He also had difficulty walking, could not run, and was unable to lift his shoulder to hold things. He later acknowledged on cross examination, however, that the hospital records from the shooting said he had no serious injuries.
Stinson claimed he had purchased marijuana from S.A. on a previous occasion. The alleged transaction was quick, taking place through the window of S.A.'s car. When questioned if he touched the trunk during the supposed exchange, Stinson said he could not recall.
According to Stinson, he left California for a fresh start at the end of May or beginning of June 2013, shortly after the robberies, because he felt his life was in danger. He denied knowing about the robbery of S.A. when he left the state.
Stinson also testified about and showed the jury his multiple tattoos on his hands, neck and face. The tattoo on his face was of a teardrop.
Stinson admitted to several juvenile felony adjudications and adult felony convictions. Likewise, defendant stipulated that he had been convicted of a previous felony.
The jury convicted defendant of all charges and found all allegations true. He was sentenced to an indeterminate term of seven-years-to-life and a consecutive determinate term of 18 years, four months as previously indicated. Defendant timely appealed.
DISCUSSION
I
Denial of Motion for Severance
Defendant contends the trial court abused its discretion and violated his due process and fair trial rights under the state and federal constitutions by denying his pretrial motion to sever the count 6 convicted felon in possession charge, which related to the firearm found in his backpack in August 2013, from the remainder of the charges. Although he concedes the offense was of the same class as those based on the May 2013 robberies and thus properly joinable under Section 954, he nonetheless argues that evidence of the August offense was not cross-admissible and likely had a spill-over effect as propensity evidence to bolster the other charges.
Section 954 authorizes joinder of offenses of the same class such as the multiple felon in possession charges here. (§ 954.) While similar offenses may be joined under the statute, a trial court may also order severance when it appears that separate trials are required in the interest of justice. (Ibid.) "The provision reflects an apparent legislative recognition that severance may be necessary in some cases to satisfy the overriding constitutional guarantee of due process to ensure defendants a fair trial." (People v. Bean (1988) 46 Cal.3d 919, 935 (Bean).) "[T]he potential for prejudice in joining unrelated offenses in a single trial lies in the introduction of 'other crimes' evidence from which the jury might infer that the defendant has a criminal disposition--a factor which the jury is not permitted to consider in determining his guilt of the charged offense." (Ibid.; Evid. Code, § 1101, subd. (a) [with certain exceptions, "evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion"].)
" ' "Refusal to sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a 'weak' case has been joined with a 'strong' case, or with another 'weak' case, so that the 'spillover' effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case." ' " (People v. Geier (2007) 41 Cal.4th 555, 575 (Geier), overruled on other grounds in Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305 .) In determining whether a trial court abused its discretion in denying severance, we consider the matter on the basis of evidence before the court at the time of its ruling. (Bean, supra, 46 Cal.3d at p. 936.) A pretrial ruling that was proper when made is reversible only if joinder was so grossly unfair as to deny due process. (Geier, supra, 41 Cal.4th at p. 575; see also People v. Soper (2009) 45 Cal.4th 759, 783 (Soper).)
In this case, defendant concedes that when the court denied the motion there was at least some evidence that the gun used to rob S.A., which S.A. originally described as black and silver, matched the gun later found in defendant's backpack. While defendant attempts to dismiss such evidence as "meager," the trial court was nonetheless aware of the evidence when it ruled.
As the court recognized, whether the gun seized in August was the same gun that was used in the robbery was a question of fact for the jury's determination. Likewise, the fact that a gun was found in defendant's possession two months after the robbery was relevant to counts 1 through 5, though its probative value was again for the jury to determine. Although S.A. later testified that he did not believe the gun confiscated from the backpack was the gun used in the robbery, such later testimony does not undermine the court's prior ruling denying severance since we review the trial court's decision denying a motion to sever at the time it was made. (Bean, supra, 46 Cal.3d at p. 936 [abuse of discretion determined based on evidence before the court when ruling made].)
Even assuming the evidence concerning the gun found in defendant's backpack was not cross-admissible with the other charges, it is well recognized that the absence of cross-admissibility alone is not sufficient to show prejudice from a failure to order severance. Courts have repeatedly held that a trial court's denial of a motion to sever charged offenses to be a proper exercise of discretion even when the evidence underlying the charges would not have been cross-admissible in separate trials. (See e.g., Bean, supra, 46 Cal.3d at p. 936-940 [charges not cross-admissible on identity]; see also Geier, supra, 41 Cal.4th at p. 577 ["the absence of cross-admissibility alone would not be sufficient to establish prejudice where (1) the offenses were properly joinable under section 954, and (2) no other factor relevant to the assessment of prejudice demonstrates an abuse of discretion"].)
As the trial court recognized, the count 6 felon in possession charge was not particularly inflammatory compared to the robbery and kidnapping charges. (People v. Cunningham (2001) 25 Cal.4th 926, 985 (Cunningham) ["The count alleging that defendant possessed a firearm as an ex-felon is not unusually inflammatory or prejudicial"].) It was also the same as the two other felon in possession charges related to the May events, and, thus, the jury would have learned of defendant's status as a felon regardless. Nor were two noncapital cases joined into a capital one.
Finally, a review of the record reveals that both cases against defendant were strong. Joinder thus did not append a weak case to a strong one, something defendant implicitly recognizes. It is unlikely, then, that a "spillover" effect might have altered the outcome on any of the charges. (Cunningham, supra, 25 Cal.4th at p. 985.)
For the May offenses, the prosecution presented strong evidence of defendant's guilt independent of the evidence concerning the August possession charge. S.A. testified that he had never met defendant. Yet defendant's fingerprint was found on the trunk of S.A.'s car, where S.A. said defendant forced him at gunpoint. S.A.'s keys and wallet, which contained his apartment key and his address, were taken during the robbery. Shortly after S.A. was robbed, Ashley was robbed at gunpoint in their shared apartment. The apartment was located only minutes away from where S.A. had been accosted. The two individuals who robbed Ashley used S.A.'s keys to force their way into the apartment, and they matched the description of the two men who had just robbed S.A. Defendant positively identified defendant as the larger Black man holding the gun to his face during the robbery from a photographic lineup and again at trial. Ashley also picked defendant out of a live lineup and later identified him at trial as one of the men who robbed her.
For the August felon in possession charge, the prosecution likewise presented strong evidence of defendant's guilt independent of the evidence regarding the May events. Defendant admitted to police he was staying with his grandmother when he was arrested. His grandmother informed officers that defendant kept his belongings in a drawer in her dresser and his backpack. A search of defendant's backpack revealed not only the loaded firearm, but numerous papers with defendant's name and his grandmother's address listed on them. Defendant also stipulated that he had been convicted of a prior felony.
Given the strength of the evidence presented on each of the charges, it is not likely the evidence on the count 6 felon in possession charge had any significant spillover effect on the other charges. Nor is it likely evidence of the charges alleged in counts 1 through 5 made the jury more likely to convict defendant of count 6. Indeed, S.A. testified that the gun used during the robbery was not the same gun found in the backpack, and the prosecutor did not argue that the two guns were the same. Given the testimony and the arguments of counsel, it is not likely that any of the convictions in counts 3, 4, and 6 were based on the same firearm.
Defendant's reliance on Bean v. Calderon (9th Cir. 1998) 163 F.3d 1073 (Bean II) to support his argument that the evidence underlying count 6 would have been impermissibly used as propensity evidence is likewise misplaced. First, Bean II is a case from the Ninth Circuit Court of Appeals and is not binding on this court. (People v. Uribe (2011) 199 Cal.App.4th 836, 875.) Second, before the Ninth Circuit ruled, the California Supreme Court considered the matter in Bean, supra, 46 Cal.3d 919. Unlike the Ninth Circuit, the Supreme Court ruled that joinder did not violate the defendant's right to due process. (Id. at p. 940.) The California Supreme Court's ruling is binding on this court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
After first concluding that the evidence related to the charged offenses would not have been cross-admissible at separate trials (Bean, supra, 46 Cal.3d at p. 938), our Supreme Court also found that the defendant did not carry the burden of showing a weak case was combined with a strong case or that one of the charged offenses was "particularly inflammatory in comparison [to] the other." (Id. at p. 939.) The court held there was substantial evidence suggesting the defendant had committed both crimes and neither was more inflammatory than the other. (Ibid.) The same is true here.
A trial court's discretion under section 954 to deny severance, moreover, is broader than its discretion to admit evidence of uncharged crimes under Evidence Code section 1101 because additional factors favor joinder. (Bean, supra, 46 Cal.3d at pp. 935-936.) This is because when ruling on a motion to sever a trial court weighs the probative value of any cross-admissible evidence plus the beneficial results of joinder against the prejudicial effect of evidence the jury would not otherwise hear. (Id. at p. 936.) A defendant seeking severance, then, "must make an even stronger showing of prejudicial effect than would be required in determining whether to admit other-crimes evidence in a severed trial." (Ibid.)
If a trial court determines that the evidence of the joined offenses is not cross-admissible, the court must then "assess the relative strength of the evidence as to each group of severable counts and weigh the potential impact of the jury's consideration of 'other crimes' evidence." (Bean, supra, 46 Cal.3d at p. 936.) In other words, the court must evaluate "the likelihood that a jury not otherwise convinced beyond a reasonable doubt of the defendant's guilt of one or more of the charged offenses might permit the knowledge of the defendant's other criminal activity to tip the balance and convict him." (Ibid.)
Based on this record, the court did not err in finding defendant failed to carry his burden of showing prejudice from the joinder. Given the legislative preference for joint trials (Soper, supra, 45 Cal.4th at pp. 771-772), the overwhelming strength of the evidence presented on all charges, and the absence of a capital case, we find no abuse of discretion in denying severance. Nor do we find that the joinder, even if initially proper, was so grossly unfair that it deprived defendant of a fair trial.
II
Ineffective Assistance of Counsel
Defendant contends his counsel was ineffective for failing to object or request a limiting instruction when Stinson testified that defendant sold him cough syrup with codeine. While defendant acknowledges that such evidence was relevant to Stinson's defense that he was injured and unable to commit the crimes or run from the scene, he argues that the evidence merely showed that he was a drug dealer, or bad person. His counsel thus had no tactical reason for not objecting or requesting a limiting instruction. Had he done so, defendant contends the result would have been different. We disagree.
To establish ineffective assistance of counsel, defendant must show, by a preponderance of the evidence, that his counsel's representation fell below the standard of a competent advocate and a reasonable probability exists that, but for counsel's errors, the result would have been different. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. (People v. Bolin (1998) 18 Cal.4th 297, 333 (Bolin).) In determining whether counsel's performance was deficient, we exercise deferential scrutiny and "assess the reasonableness of counsel's acts or omissions . . . under the circumstances as they stood at the time that counsel acted or failed to act." (Ledesma, at p. 216.) "Although deference is not abdication [citation], courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight." (People v. Scott (1997) 15 Cal.4th 1188, 1211-1212.)
We presume that counsel's conduct fell within the "wide range of reasonable professional assistance." (People v. Maury (2003) 30 Cal.4th 342, 389.) Our review is limited to the record on appeal and we must reject a claim of ineffective assistance "if the record sheds no light on why counsel acted or failed to act in the manner challenged unless (1) counsel was asked for and failed to provide a satisfactory explanation or (2) there simply could be no satisfactory explanation." (People v. Burgener (2003) 29 Cal.4th 833, 880.)
" '[A] mere failure to object to evidence or argument seldom establishes counsel's incompetence.' " (People v. Wharton (1991) 53 Cal.3d 522, 567.) This rule appears applicable here. As the People point out, none of the charges involved drug offenses, and defense counsel may have made the sound tactical decision not to object to Stinson's testimony because he did not want to draw the jury's attention to the evidence. (Cf. Ibid. [counsel did not provide ineffective assistance by failing to object because counsel might not have wanted to highlight the point with the jury].)
In any event, even if counsel's performance was deficient, defendant has not shown a reasonable probability that a more favorable determination would have resulted had counsel's purported errors not occurred. (Strickland v. Washington (1984) 466 U.S. 668, 697 [if "it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed"].) That is, on this record, defendant has not established a sufficient probability to undermine confidence in the outcome of the trial. (Bolin, supra, 18 Cal.4th at p. 333.)
As discussed above, the evidence of defendant's guilt of the charges was overwhelming. Although S.A. did not know defendant, defendant's fingerprint was found on S.A.'s trunk and S.A.'s keys, which were taken during the robbery, were left at his apartment by the men who robbed Ashley minutes later. Both victims identified defendant during trial, and S.A. identified defendant from a photographic lineup and Ashley identified him during a live lineup. Given the strength of the evidence against him, it is not reasonably probable the jury's knowledge that defendant sold Stinson cough syrup on a previous occasion had any effect on the verdicts. The absence of an objection or limiting instruction was not prejudicial. (Strickland, supra, 466 U.S. at p. 697.)
III
Evidence of Victims' Move after Robberies
Over a relevance objection from Stinson's counsel which defendant did not join, S.A. was permitted to testify that he and Ashley moved out of their apartment following the robberies because they felt unsafe. S.A. lived in his car while Ashley moved with their children to her parents' home. Defendant contends the admission of this evidence, which he characterizes as collateral and irrelevant, violated his constitutional due process rights. Recognizing the absence of an objection below and anticipating a finding of waiver, defendant alternatively contends that his counsel was ineffective for failing to object.
Defendant's argument fails at the outset because he did not object to the evidence during trial. (People v. Jacobs (1987) 195 Cal.App.3d 1636, 1656 (Jacobs) [defendant waived argument that court erred in allowing courtroom demonstration by failing to object below].) Under Evidence Code section 353, "[a] verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) [t]here appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion . . . ." (Evid. Code, § 353, subd. (a).)
Defendant, moreover, did not join in the relevance objection interposed by Stinson's counsel. " 'On appeal, a defendant cannot take advantage of objections made by a codefendant in the absence of stipulation or understanding to that effect.' " (Jacobs 195 Cal.App.3d at p. 1656.) Defendant's failure to personally object or to join in Stinson's objection thus waived any potential claim of error. (Ibid.; Evid. Code, § 353.)
Turning to defendant's alternative theory that his counsel was ineffective for failing to object, we conclude defendant has not shown a reasonable probability that a more favorable determination would have resulted had counsel lodged a successful objection to exclude the evidence. (Strickland v. Washington (1984) 466 U.S. 668, 697 [if "it is easier to dispose of an ineffectiveness claim on the ground of lack of prejudice . . . that course should be followed"].) Notwithstanding defendant's argument to the contrary, as previously discussed, the prosecution presented strong evidence of defendant's involvement in both robberies.
Defendant's characterizations of the identifications as questionable and the fingerprint evidence as inconclusive since it was not definitively established when the fingerprint was placed on the car trunk, moreover, are without merit. S.A.'s identification of defendant as the larger man who held a gun to his head during the robbery never wavered. And while Ashley did not initially identify defendant from the photographic lineup, based on his voice and head shape she identified him during the live lineup and again at trial. Both victims also testified that they had never met defendant and did not know him, nor did they know Stinson. Based on such evidence, the jury could reasonably infer that defendant's fingerprint was placed on S.A.'s trunk when defendant forced S.A. inside at gunpoint and not at some other point in time since defendant was unknown to the victims. The same goes for Stinson's palm print found in the same area of the trunk.
To the extent the evidence may have garnered jurors' sympathy, the jury was instructed pursuant to CALCRIM No. 200 to not let sympathy influence its decision. "Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions." (People v. Sanchez (2001) 26 Cal.4th 834, 852.)
We are confident the result would have been same even had S.A. not testified about their living circumstances following the robberies. We therefore reject defendant's ineffective assistance claim.
IV
Sufficiency of Evidence of Kidnapping to Commit Robbery
Defendant next contends insufficient evidence supports his conviction for kidnapping for the purpose of robbery because S.A. was not moved a substantial distance. In his view, moving S.A. the short distance to the trunk was merely incidental to the robbery and done to facilitate a more thorough search of the vehicle without S.A.'s interference.
" '[A]n appellate court deciding whether sufficient evidence supports a verdict must determine whether the record contains substantial evidence--which we repeatedly have described as evidence that is reasonable, credible, and of solid value--from which a reasonable jury could find the accused guilty beyond a reasonable doubt.' " (People v. Vines (2011) 51 Cal.4th 830, 869 (Vines).) "We presume in support of the judgment 'the existence of every fact the trier could reasonably deduce from the evidence.' " (Ibid.)
Section 209, subdivision (b) prohibits any person from kidnapping or carrying away any individual to commit robbery. (§ 209, subd. (b)(1).) The kidnapping for robbery statute applies only "if the movement of the victim is beyond that merely incidental to the commission of, and increases the risk of harm to the victim over and above that necessarily present in, the intended underlying offense." (Ibid.)
"These two elements are not mutually exclusive but are interrelated." (Vines, supra, 51 Cal.4th at pp. 869-870.) "The jury considers both whether the movement was more than merely incidental to a crime and whether there was an increased risk of harm to the victim." (People v. Simmons (2015) 233 Cal.App.4th 1458, 1471 (Simmons).)
To determine whether movement is more than merely incidental to a robbery, "the jury considers the 'scope and nature' of the movement, which includes the actual distance a victim is moved. [Citations.] There is, however, no minimum distance a defendant must move a victim to satisfy . . ." this prong under section 209. (Vines, supra, 51 Cal.4th at pp. 870-871; Simmons, supra, 233 Cal.App.4th at p. 1471.)
The second prong under section 209 refers to " ' "whether the movement subjects the victim to a substantial increase in risk of harm above and beyond that inherent in [the underlying crime.] [Citations.] This includes consideration of such factors as the decreased likelihood of detection, the danger inherent in a victim's foreseeable attempts to escape, and the attacker's enhanced opportunity to commit additional crimes. [Citations.] The fact that these dangers do not in fact materialize does not, of course, mean that the risk of harm was not increased." ' " (Vines, supra, 51 Cal.4th at p. 871.)
Here, the evidence adduced at trial revealed that S.A. was sitting in the driver's seat of his car when defendant and Stinson suddenly appeared. Defendant pointed a gun in S.A.'s face, and the men took S.A.'s wallet, phone, and keys. They then forced S.A. to walk from the passenger compartment of the car towards the back of the vehicle while defendant kept the gun aimed at S.A.'s head. After Stinson popped the trunk open, they forced S.A. at gunpoint to get inside and slammed the trunk lid closed. S.A. estimated the distance he was moved as being six to eight feet. From inside the trunk, S.A. could hear defendant and Stinson rummaging through the car. When it became quiet, S.A. used an emergency release lever located inside the trunk to open it and crawl out.
Based on this evidence, defendant argues that "the only conclusion supported by this record is that the sole reason [S.A.] was placed in the trunk was to put him out of the way so that a search of the interior of the vehicle could take place without interference from [S.A.]" We disagree. Viewing the evidence in the light most favorable to the judgment, as we are required to do (People v. Hill (1998) 17 Cal.4th 800, 848), rather than in the light most favorable to defendant, as he has done, leads us to a different conclusion.
The record also shows that when S.A. was first accosted, he did not say or do anything to prevent defendant and Stinson from taking his belongings. Indeed, he complied with every command. He pulled his pants down so defendant and Stinson could pat him down. As ordered, he kept his hands still and where the robbers could see them. Defendant was sitting in the front passenger seat and had easy access to the glove compartment and the center console even though S.A. was sitting in the driver's seat.
From this evidence, a reasonable jury could infer that defendant and Stinson did not move S.A. to the trunk merely to facilitate a further robbery, but rather to make it easier for the victim to go undetected while they escaped to commit the second robbery of Ashley at S.A.'s apartment. (People v. Robertson (2012) 208 Cal.App.4th 965, 983-984 (Robertson) [moving rape victim from back to front of garage reduced possibility for victim to escape and made it less likely that others would hear cries for help].) The fact that the robbers did not announce their intention to escape when they placed S.A. in the trunk is of no moment. Hiding the victim in the trunk undoubtedly aided in their escape as it prevented others from seeing the victim and from arousing suspicion about what they were doing in S.A.'s car. (People v. Jones (1999) 75 Cal.App.4th 616, 629-630 (Jones) [victim pushed into car was out of public view; concern would have been aroused if in public view].) Under these circumstances, we cannot say the "scope and nature" of this movement was "merely incidental" to the commission of the robbery.
We also conclude that moving S.A. to the trunk, which was estimated to be around six to eight feet, was not insubstantial for purposes of the kidnapping for robbery statute. " 'Where movement changes the victim's environment, it does not have to be great in distance to be substantial.' " (Robertson, supra, 208 Cal.App.4th at p. 986.)
In People v. Corcoran (2006) 143 Cal.App.4th 272, 279, the court found sufficient evidence of asportation to support a kidnapping for robbery conviction where the defendants moved several victims approximately 10 feet from a public area to a small back office with a solid door and without windows. In People v. Shadden (2001) 93 Cal.App.4th 164, 167, the court found that moving the victim nine feet from the front counter to a backroom, which was hidden from open view, was sufficient to support a conviction for kidnapping to commit rape under section 209, subdivision (b). Here, moving S.A. around six to eight feet from the front of the car where he was visible to the public to inside the trunk to hide him from view is similar to the movements in Corcoran and Shadden. And even if the distance is somewhat less in this case, as the Supreme Court has recognized, there is no minimum distance required for aggravated kidnapping. (Vines, supra, 51 Cal.4th at pp. 869-870; see also People v. Martinez (1999) 20 Cal.4th 225, 233 (Martinez) [" 'there is no minimum number of feet a defendant must move a victim in order to satisfy the first prong' "].)
S.A. suffered increased psychological harm from being forced into the trunk. (People v. Tuan Van Nguyen (2000) 22 Cal.4th 872, 885-886 (Nguyen) [the increased risk of harm may be either physical or psychological harm].) He believed he would not see his family again when told to get in the trunk, and he begged defendant and Stinson not to make him get inside. That heightened sense of psychological fear caused him to object for the first time throughout the entire ordeal. Because defendant had taken his keys and S.A. could still hear the men inside the car, a reasonable jury could also infer that S.A. felt a reasonable, heightened sense of fear that the men would drive him to an unknown location and harm him. (See e.g., People v. Burney (2009) 47 Cal.4th 203, 211-213 [sufficient evidence supported defendant's kidnapping for robbery conviction where victim was forced out of his car, robbed of his wallet, and forced at gunpoint into the trunk of his vehicle and was later shot and killed inside the trunk].)
The forcible movement, moreover, subjected S.A. to a substantially increased risk of harm above and beyond that inherent in robbery. (Vines, supra, 51 Cal.4th at p. 871 [moving victims into a locked freezer increased their risk of harm by subjecting them to low temperatures, decreased likelihood of detection, and danger inherent in victim's foreseeable attempts to escape such an environment]; Jones, supra, 75 Cal.App.4th at pp. 622, 629-630 [substantial risk of harm to victim increased after defendant took victims keys and wallet, walked her across parking lot and pushed her inside car where she was no longer in public view].) S.A., a large man, was forced into the small, confined trunk space around 1:00 p.m. in the middle of May in Sacramento where it is not uncommon for temperatures to be elevated. Indeed, one of the men who helped S.A. call the police after crawling out of the trunk testified that it was a "warm day." Locked in the trunk, rising temperatures could have quickly placed S.A. in peril. (See e.g., McLaren, Null & Quinn in Pediatrics, Vol. 116, Issue 1 (July 2005) Heat Stress From Enclosed Vehicles: Moderate Ambient Temperatures Cause Significant Temperature Rise in Enclosed Vehicles [study found that car's interior can heat up by an average of 40 degrees Fahrenheit within an hour, regardless of ambient temperature; 80 percent of the temperature rise occurred within first half-hour].) That S.A. was ultimately able to use an emergency release lever in the trunk to open it does not lessen the heightened harm to which S.A. was subjected. (Vines, supra, 51 Cal.4th at p. 870 [recognizing that risk of harm to victims from being locked in a freezer for several minutes still increased even though no potential danger actually materialized].)
Finally, forcing S.A. into the trunk also enhanced defendant's ability to escape and to commit additional crimes. (People v. Martin (1967) 250 Cal.App.2d 263, 269 [kidnapping for robbery conviction upheld where defendant robbed victims and then moved them to nearby room to effect an escape]; Robertson, supra, 208 Cal.App.4th at p. 985 [movement of victim increased defendant's opportunity to commit additional sexual crimes].) With S.A. locked in the trunk, defendant and Stinson were able to walk away from his vehicle, get in their car and drive off undetected. A short time later, defendant and Stinson used S.A.'s keys and went to his apartment where they robbed Ashley at gunpoint while her two young children were home.
Viewing the evidence in the light most favorable to the judgment, and considering the totality of the circumstances (People v. Dominguez (2006) 39 Cal.4th 1141, 1153), we conclude the entirety of the movement of S.A. from the inside of his car to the trunk of his vehicle was not merely incidental to the robbery and substantially increased the risk of harm to S.A. over and above that in the underlying robbery. We therefore hold there was substantial evidence to support defendant's aggravated kidnapping conviction.
V
Instructional Error
Responding to the prosecutor's request for a pinpoint instruction concerning a robber's escape following a robbery, and over defendant's objection, the trial court modified the standard jury instruction on kidnapping for the purpose of robbery (CALCRIM No. 1203) by adding the following italicized language to the pattern instruction: "To prove that a defendant is guilty of this crime, the People must prove that: [¶] . . .[¶] (2) Acting with the intent to commit robbery including the intent to aid in the escape from the intended robbery, the defendant took, held, or detained another person by using force or by instilling a reasonable fear."
The added language is based on People v. Laursen (1972) 8 Cal.3d 192 where the court upheld the defendant's conviction for kidnapping for the purpose of robbery after the defendant and his companion committed an armed robbery in a store and then fled the scene and kidnapped a victim from the parking lot, forcing him to drive them to a place of safety when their getaway car would not start. (Laursen, supra, 8 Cal.3d at pp. 196-197.) Although the intent to kidnap was formed after the robbery was commenced and even though the kidnapping victim was not the victim of the robbery, the court reasoned that the defendant was guilty of kidnapping for robbery because "[t]he assault of the victim, the seizure of his property and the robber's escape to a location of temporary safety are all phases in the commission of the crime of robbery linked not only by a proximity of time and distance, but a singlemindedness of the culprit's purpose as well." (Id. at pp. 199-200.)
In challenging the modified jury instruction, defendant does not contend the instruction misstated the law. Instead, he argues that no evidence supported the theory that defendant forced S.A. into the trunk to aid in his escape. Instructing the jury on the purportedly irrelevant theory, he contends, rendered the trial fundamentally unfair and violated his state and federal constitutional due process rights. We disagree.
" ' "It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." ' " (People v. Breverman (1998) 19 Cal.4th 142, 154.) A necessary corollary to this well established rule is that, to avoid confusing or misleading the jury, a court must not instruct on irrelevant principles of law. (People v. Saddler (1979) 24 Cal.3d 671, 681.) It is this latter correlative principle that defendant contends the court violated when it gave a modified version of CALCRIM No. 1203.
Defendant reiterates his position that the only conclusion supported by the record is that S.A. was moved to and placed into the trunk so defendant and Stinson could continue searching the car. Had the movement been intended to aid in their escape, he claims they would have immediately fled the scene after forcing S.A. into the trunk. We have already rejected defendant's narrow view of the evidence, which he considers in the light most favorable to himself rather than the judgment, however.
When evaluating whether there was a sufficient evidentiary foundation for giving an instruction, substantial evidence means " ' "evidence sufficient 'to deserve consideration by the jury.' " ' " (People v. Wilson (2005) 36 Cal.4th 309, 331.) There was certainly enough evidence presented from which the jury could determine whether forcing S.A. into the car at least partly allowed the robbers to escape undetected. The two men who eventually let S.A. use a phone to call the police drove up when S.A. was being forced into the trunk. Although one man thought he saw someone get into the trunk, his companion convinced him otherwise. One of the witnesses saw two men at S.A.'s car and believed they might have been working on a car stereo. They also saw them walk away from S.A.'s car and drive off in another vehicle. It is not unreasonable to infer that had they stumbled upon the scene moments earlier when defendant held a gun to S.A.'s head, the men may have intervened or at least called police, especially since they helped S.A. contact law enforcement after he emerged from the trunk.
Defendant, moreover, cites no authority for the proposition that an escape must always occur immediately after a victim is moved or else the movement cannot be deemed to have aided in the escape. Clearly, forcing S.A. into the trunk of the car helped defendant and Stinson walk away from the car unimpeded even if they did so after lingering at the car for a few minutes. By placing him in the trunk, defendant was no longer required to hold a gun to S.A.'s head in plain view of anyone passing by. The totality of the evidence was sufficient to warrant giving the modified instruction.
VI
Cruel and Unusual Punishment
Given the short distance S.A. was moved from the passenger compartment of his car to the trunk, that S.A. was purportedly not harmed, and that he was able to use the emergency release lever to get out of the trunk, defendant contends the seven-years-to-life sentence imposed for the kidnapping for robbery conviction is grossly disproportionate to the crime and amounts to cruel and unusual punishment. While we reject the People's contention that defendant forfeited his challenge, we nevertheless conclude defendant's sentence does not constitute cruel and unusual punishment.
Preliminarily, we address the People's argument that defendant failed to adequately object below because his counsel stated only that the sentence "border[ed]" on cruel and unusual punishment but did not affirmatively argue it "violated" the constitutional prohibition against such sentences.
At the sentencing hearing, defendant's counsel argued that "the difference in his exposure from a determinate to the indeterminate based on the sole factor of putting [S.A.] into the trunk of the car is so significant that it borders on cruel and unusual punishment, in violation of his Eight Amendment right, in the sense that that one action turns what would have been a determinate sentence if it was just a robbery with the use. . . . I think he was in the trunk for approximately five to 10 minutes. He was never at risk of exposure to the elements. He was able to get out as soon as he wanted in essence by using that emergency trunk release lever and then was immediately able to call the police. I don't believe that a sentence of 18 years, four months with an additional seven-to-life sentence is appropriate for the conduct at issue." The prosecutor briefly responded to counsel's comment, stating, "sometimes one action, and in this case the action of putting [S.A.] in the trunk, is deserving of a much greater sentence."
"An objection is sufficient if it fairly apprises the trial court of the issue it is being called upon to decide." (People v. Scott (1978) 21 Cal.3d 284, 290.) "In a criminal case, the objection will be deemed preserved if, despite inadequate phrasing, the record shows that the court understood the issue presented." (Ibid.) Here, the transcript of the hearing reveals defendant's counsel asserted that the nature of the crime did not fit the punishment. In other words, that the punishment was disproportionate with defendant's conduct. (See Rummel v. Estelle (1980) 445 U.S. 263, 267 (Rummel) [defendant filed petition for writ of habeas corpus arguing that "his life sentence was so disproportionate to the crimes he had committed as to constitute cruel and unusual punishment"].) In doing so, he specifically referenced the Eighth Amendment's prohibition against cruel and unusual punishment. The prosecutor clearly understood the argument as he responded that sometimes specific conduct, even putting someone in a trunk for a short period, warrants a harsher penalty. Defendant's objection fairly apprised the court of the issue and adequately preserved it for appeal. (cf. Scott, supra, 21 Cal.3d at p. 290 [objection sufficiently preserved even though counsel made no specific constitutional reference and cited no authorities].) We turn to the merits of his cruel and unusual punishment argument.
"The Eighth Amendment, which forbids cruel and unusual punishments, contains a 'narrow proportionality principle' that 'applies to noncapital sentences.' " (Ewing v. California (2003) 538 U.S. 11, 20 (Ewing), citing Harmelin v. Michigan (1991) 501 U.S. 957, 996-997 (Harmelin) [Kennedy, J., concurring in part and concurring in judgment].) It "forbids only extreme sentences that are 'grossly disproportionate' to the crime." (Harmelin, supra, 501 U.S. at p. 1001; see also People v. Cartwright (1995) 39 Cal.App.4th 1123, 1135.)
Indeed, "[o]utside the context of capital punishment, successful challenges to the proportionality of particular sentences" are "exceedingly rare." (Rummel, supra, 445 U.S. at p. 272.) This is because state legislatures possess broad authority to determine the types and limits of punishments for crimes (id. at p. 284), and trial courts generally have some discretion in sentencing convicted criminals. (Solem v. Helm (1983) 463 U.S. 277, 290 .)
Defendant's claim that his seven-years-to-life sentence for the kidnapping for robbery conviction is grossly disproportionate is premised on a self-serving characterization of the offense. He emphasizes that S.A. was only moved several feet and that he did not suffer any harm. Yet S.A. testified to suffering severe psychological trauma as a result of being forced into the trunk of his car while defendant pointed a gun at his head. Under the circumstances, S.A. reasonably believed he would never see his family again. That S.A. did not suffer physical injuries does not mean he was not injured during the kidnapping and robbery. (Nguyen, supra, 22 Cal.4th at pp. 885-886 [harm may be psychological as well as physical].)
Similarly, defendant's suggestion that the violent nature of the crime was somehow lessened because he only moved S.A. several feet is specious. Moving a robbery victim even a short distance can greatly increase the danger to which the victim is exposed. (Robertson, supra, 208 Cal.App.4th at p. 986 [" 'Where movement changes the victim's environment, it does not have to be great in distance to be substantial' "].) As noted above, moving S.A. from public view and forcing him into the trunk where he was hidden from detection not only exposed him to an enhanced opportunity for injury but also permitted defendant an opportunity to commit additional crimes.
Defendant, a repeat adult felony offender, was an active participant in the kidnapping and robbery. He held a gun to S.A.'s head and forced him into the trunk. There can be no dispute that kidnapping for the purpose of robbery while using a firearm presents a significant degree of danger to society.
Defendant's violent crime against a person and his culpability and role during the offense brings his seven-years-to-life sentence within the constitutional boundaries established by the cruel and unusual punishment clause. (See e.g., Rummel, supra, 445 U.S. at p. 285 [mandatory life sentence imposed under recidivist statute for fraudulent use of credit card to obtain $80 worth of goods and services, passing a forged check in the amount of $28.36, and obtaining $120.75 by false pretenses did not constitute cruel and unusual punishment]; Ewing, supra, 538 U.S. at pp. 17-18, 29-30 [25-years-to-life sentence for defendant with prior convictions who was subsequently convicted of shoplifting $1,200 worth of golf clubs did not violate Eighth Amendment].) The sentence is not grossly disproportionate within the meaning of the Eighth Amendment.
DISPOSITION
The judgment is affirmed.
HULL, J. We concur: NICHOLSON, Acting P. J. RENNER, J.